Citation NR: 9609541
Decision Date: 04/10/96 Archive Date: 04/24/96
DOCKET NO. 94-12 343 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to recognition as surviving spouse of the veteran
for Department of Veterans’ Affairs (VA) death pension
purposes.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
Alan S. Peevy, Counsel
INTRODUCTION
The veteran had active military service from April 1944 to
March 1946. He died on June [redacted] 1992.
This case is before the Board of Veterans’ Appeals (Board) on
appeal from a July 1993 administrative decision by the San
Juan, Puerto Rico, Regional Office (RO). A notice of
disagreement was received in October 1993, and a statement of
the case was issued in December 1993. The appellant’s
substantive appeal was received in January 1994.
The appellant is represented by the Puerto Rico Public
Advocate for Veterans Affairs.
REMAND
The appellant in the present case is claiming VA death
pension benefits as the surviving spouse of the veteran. As
noted in the introduction, the veteran died in June 1992.
The death certificate indicates that he died in Ohio and that
he was residing in Ohio at the time of his death. Of record
is a copy of a marriage certificate documenting a marriage
ceremony between the appellant and the veteran in Puerto Rico
November 1991. However, the appellant has reported that she
and the veteran began living together in Puerto Rico in
October 1990, and she has not reported living elsewhere. The
RO has denied the appellant’s claim based on its
determination that the appellant was not married to the
veteran for one year as required by 38 C.F.R. § 3.54(a)
(1995) and an apparent finding that she had knowledge that
common law marriages were not recognized in Puerto Rico, thus
precluding a finding of a deemed valid marriage under the
provisions of 38 C.F.R. § 3.52 (1995).
Under 38 C.F.R. § 3.52 (1995), where an attempted marriage of
a claimant to the veteran was invalid by reason of a legal
impediment, the marriage will nevertheless be deemed valid
if: i) the marriage occurred 1 year or more before the
veteran died (or existed for any period of time if a child
was born of the purported marriage or was born to them before
such marriage); ii) the claimant entered into the marriage
without knowledge of the impediment; iii) the claimant
cohabited with the veteran continuously from the date of
marriage to the date of his or her death; and iv) no claim
has been filed by a legal surviving spouse who has been found
entitled to gratuitous death benefits other than accrued
monthly benefits covering a period prior to the veteran’s
death. It should be noted that all of the above requirements
must be met in order to find a deemed valid marriage.
In the present case, the fact that Puerto Rico is a
jurisdiction which does not recognize common-law marriages (
a fact which does not appear to be contested) constitutes a
“legal impediment” for purposes of the requirements set forth
in 38 C.F.R. § 3.52 (1995). VAOPGCPREC 58-91 (O.G.C. Prec.
58-91). However, under 38 C.F.R. § 3.205(c) (1995), a
claimant’s signed statement that he or she had no knowledge
of an impediment to the marriage to the veteran will be
accepted, in the absence of information to the contrary, as
proof of that fact. Moreover, the United States Court of
Veterans Appeals (Court) has indicated that the VA must
afford the opportunity to submit such a signed statement.
Sandoval v. Brown, 7 Vet.App. 7, 10 (1994). A review of the
claims file shows that the RO has requested the appellant to
indicate if (at the time of her marriage) she knew of any
reasons, including legal reasons, why she and the veteran
were not free to marry or could not marry. However, the
Board does not believe this language adequately informed the
appellant of the fact that she could submit a signed
statement that she did not know that common law marriages
were not recognized in Puerto Rico. Remedial action by the
RO to afford the appellant the opportunity to submit such a
signed statement is therefore necessary.
Additionally, the Board notes that several statements from
the appellant submitted in connection with her claim
(including the notice of disagreement) have not been
translated from Spanish to English for the record. Such
action is therefore necessary to present a proper record for
appellate review.
Further, the Board notes that on her Appeal to Board of
Veterans’ Appeals (VA Form 9), the appellant checked the
appropriate boxes to request a personal hearing before a
member of the Board at the RO. By letter dated in February
1994, the appellant was notified that a hearing had been
scheduled at the RO for March 11, 1994. A handwritten
notation in the claims file is to the effect that the
appellant did not appear for the hearing. However, it is not
clear from the RO’s notification letter or from other
documents in the claims file that a hearing before a member
of the Board sitting at the RO was in fact scheduled as
opposed to a hearing before RO personnel at the RO. In view
of the need for other preliminary actions as outlined above,
the Board believes that clarification of the appellant’s
hearing request would be appropriate.
Finally, the Board notes that the appellant notified the RO
of a change of address in October 1993. However, it appears
that at least one communication (the RO’s October 17, 1995,
letter notifying her of transfer of her file to the Board)
was sent to a prior address. The RO’s attention is directed
to this matter to ensure that all communications are sent to
the appellant’s address of record.
For the reasons set forth above, the case is hereby REMANDED
to the RO for the following actions:
1. The RO should review the claims
file and enter into the record
English translations of all
communications from the appellant
pertinent to her claim which have not
already been so translated.
2. The RO should contact the
appellant and her representative in
writing and request clarification of
her request for a personal hearing
before a member of the Board sitting
at the RO. The appellant and her
representative should also be clearly
advised that the appellant has the
opportunity under 38 C.F.R.
§ 3.205(c) (1995) to submit a written
statement that she had no knowledge
that Puerto Rico did not recognize
common law marriages and that this
was an impediment to such a marriage.
The appellant and her representative
should also be informed that such a
written statement from the appellant
will be accepted as proof of such
lack of knowledge under 38 C.F.R.
§ 3.205(c) (1995) in the absence of
information to the contrary. A copy
of the RO’s letter to the appellant
and her representative should be
associated with the claims file.
3. After receiving a response from
the appellant and her representative
(or after a reasonable time has
passed without a response), the RO
should undertake any indicated
actions and/or further development
(including clarification as to which
jurisdictions the parties resided
in). The RO should then review the
claims file and determine whether the
appellant’s claim can be granted.
The RO’s determination should include
consideration of all of the
requisites for a deemed valid
marriage set forth in 38 C.F.R.
§ 3.52 (1995) and the provisions of
38 C.F.R. § 3.205(c) (1995). If the
RO’s determination remains adverse to
the appellant, then the appellant and
her representative should be
furnished a supplemental statement of
the case setting forth a summary of
the evidence, a citation to and
discussion of applicable laws and
regulations, and a detailed analysis
of the reasons for the RO’s
determination. After affording the
appellant and her representative a
reasonable opportunity to respond,
the case should be returned to the
Board for further appellate review.
The purpose of this remand is to ensure compliance with
applicable regulatory law and the jurisprudence of the Court.
The Board intimates no opinion as to the eventual
determination to be made.
E. M. KRENZER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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